BPS Engineering And Construction Company Ltd v. Federal Road Maintenance Agency & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

HELEN MORONKEJI OGUNWUMIJU, JSC (Delivering the leading judgment)

This is an interlocutory appeal against the ruling of the Court of Appeal, Abuja Division, delivered on the 4th day of June, 2013 by their Lordships: Amiru Sanusi, A. D. Yahaya and M. A. A. Adumein JJCA wherein their Lordships granted the prayer by the 1st respondent for an order of restorative mandatory injunction against the appellant, thereby ordering it to pay the judgment sum of N460 Million naira into an interest yielding account operated by the Chief Registrar of the Court of Appeal within 30 days of the Order.

The facts that led to this appeal are as follows:

The appellant was the plaintiff in the High Court of the FCT where it claimed the sum of N27,165,103.66 being the outstanding principal sum in respect of two contracts entered into between it and the 1st respondent. The appellant also claimed interest at the rate of 30% per annum and N200,000,000.00 (Two hundred million naira) as damages. Judgment was entered in favour of the appellant on 20/12/2011.

The appellant was judgment creditor for the sum of (N460,000,000.00 (Four hundred and sixty million naira only). The Federal Capital Territory trial court also dismissed the objection of the respondents to its jurisdiction.

The 1st respondent, dissatisfied with the judgment appealed to the Court of Appeal vide the notice of appeal dated the 20th day of December, 2011. In pursuance of the execution of the said judgment of the trial court, the appellant secured a garnishee order nisi on the 2nd day of July, 2012, against the Central Bank of Nigeria/4th respondent, and the Accountant General of the Federation.

By a ruling dated the 22nd day of June 2012, the trial court had barred the 1st respondent from participating in the garnishee proceedings on the ground that as a judgment debtor he had no locus standi to participate or take part in the garnishee proceedings.

By an affidavit to show cause dated the 20th day of July, 2012, the 4th respondent/garnishee consented to the grant of garnishee order absolute – against it and pursuant to the consent in the said affidavit to show cause, Inyang, J on the 1st August, 2012 granted a garnishee order absolute against the 4th respondent/garnishee wherein the 4th respondent was ordered to pay the sum of N460 million being the judgment debt into the account of the appellant in Access Bank.

Dissatisfied with the above order, the 1st respondent appealed to the Court of Appeal vide the notice of appeal dated the 2nd day of August, 2012.

The trial court further granted a Garnishee Order Nisi on 22nd October, 2012 for N87,620,000.00 being the cost of execution of the Garnishee Order Absolute. The 1st respondent being dissatisfied had also appealed against the order nisi to the Court of Appeal vide the notice of appeal dated 30/10/12. On the 4th day of September, 2012, Yusuf J of the same FCT High Court on the application of the 4th respondent/garnishee filed on 21st August, 2012, made an order varying the order of Inyang, J wherein the 4th respondent garnishee was ordered to pay the judgment sum of N460 million to the account of the 2nd respondent instead of paying same to the account of the appellant as ordered by Inyang, J. The order was obeyed.

The 1st respondent in its quest to enforce the order of Yusuf, J filed an application in the Court of Appeal dated the 25th day of February 2013 seeking an order of mandatory restorative injunction to compel the appellant to pay the said judgment sum into an interest yielding account operated by the Chief Registrar of the Court of Appeal.

It transpired that the 2nd respondent had already paid the judgment sum to the appellant on 19/9/12 in compliance with the order of Inyang, J. The Registry of the FCT High Court claimed that it had not been served with the order of Yusuf, J. by the time it paid the money. This is notwithstanding that the variation order by YUSUF J was made on 4/9/12.

In response to the said motion for mandatory injunction, the appellant, by a notice of preliminary objection dated the 27th day of March 2013, challenged the jurisdiction of the court to hear the motion on the ground that the motion is incompetent and liable to be struck out. The appellant by motion also challenged the jurisdiction of the court to hear the appeal. Parties filed process and joined issues on the issue of jurisdiction of the court.

On the 4th day of June 2013, the Court of Appeal delivered its ruling granting an order of restorative mandatory injunction against the appellant compelling him to pay the judgment sum of N460,000,000.00 (Four hundred and sixty million naira only) into the interest yielding account operated by the Chief Registrar of the Court of Appeal.